Friends of South West Rocks Inc v Machro Pty Limited - [2004] NSWLEC 721

No judgment structure available for this case.

Reported Decision: 136 LGERA 198

Land and Environment Court

of New South Wales

CITATION: Friends of South West Rocks Inc v Machro Pty Limited and Ors [2004] NSWLEC 721

PARTIES: APPLICANT:
Friends of South West Rocks Inc
FIRST RESPONDENT:
Machro Pty Limited
SECOND RESPONDENT:
Eric Norman Developments Pty Limited
THIRD RESPONDENT:
Kempsey Shire Council
FOURTH RESPONDENT:
The Director-General of National Parks and Wildlife

FILE NUMBER(S): 41639 of 2003

CORAM: Pain J

KEY ISSUES: Development Consent :- Whether development application made if not accompanied by SIS - Whether separate development applications can be aggregated to determine whether state significant development under SEPP 71 or whether masterplan required under SEPP 71 - failure by consent authority to consider relevant matters - whether concurrence given by NPWS invalid as requires a payment in compensation for loss of threatened species habitat

LEGISLATION CITED: Coastal Protection Act 1979
Environmental Planning and Assessment Act 1979, s 76A, s 78A, s 79B, s 79C, s 80A, s 94
Environmental Planning and Assessment Regulation 2000, cl 49, cl 50(1), cl 51
Interpretation Act 1987, s 11, s 32(2)(a)
Kempsey Local Environmental Plan 1987
Land and Environment Court Act 1979, s 25B
National Parks and Wildlife Act 1974, s 8(7)
State Environmental Planning Policy 71 - Coastal Protection, cl 2, cl 7(b), cl 8, cl 10, cl 17, cl 18(1), cl 25, sch 2
Threatened Species Conservation Act 1995

CASES CITED: Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 20 LGRA 208;
Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312;
Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41;
Fitch v Shoalhaven City Council (1989) 67 LGRA 165;
Meriton Apartments Pty Limited v Minister Urban Affairs and Planning (2000) 107 LGERA 363;
Mison v Randwick Municipal Council (1991) 23 NSWLR 734;
Parramatta v Hale (1982) 47 LGRA 319;
Rockdale Municipal Council v Tandel Corporation Pty Limited (1975) 34 LGRA 196;
Somerville v Dalby (1990) 69 LGRA 422;
Starray Pty Limited v Sydney City Council [2001] NSWLEC 129;
Waverley Council v C. M. Hairis Architects [2002] NSWLEC 180;
Weal v Bathurst City Council (2000) 111 LGERA 181

DATES OF HEARING: 10/06/2004
11/06/2004
15/06/2004
25/10/2004

DATE OF JUDGMENT: 12/21/2004

LEGAL REPRESENTATIVES:
APPLICANT:
Mr I. Hemmings instructed by the Environmental Defenders Office
FIRST RESPONDENT:
Mr C. E. Underwood instructed by Howard Sheridan Cooney Harvey
SECOND RESPONDENT:
Mr J. Maston with Mr M. Seymour instructed by Falvey Associates
THIRD RESPONDENT:
N/A
FOURTH RESPONDENT:
Ms J. Jagot with Mr D. M. Jay instructed by the Department of Environment and Conservation

JUDGMENT:

THE LAND AND
ENVIRONMENT COURT
OF NEW SOUTH WALES

Pain J

21 December 2004

41639 of 2003 Friends of South West Rocks Inc v Machro Pty Limited, Eric Norman Developments Pty Limited, Kempsey Shire Council and the Director General of the National Parks and Wildlife Service
JUDGMENT

1 Her Honour: The Applicant, Friends of South West Rocks Inc, is seeking declarations that three development consents issued to Machro Pty Limited, the First Respondent, and Eric Norman Developments Pty Limited, the Second Respondent, by Kempsey Shire Council, the Third Respondent, are invalid. A separate declaration is sought by the Applicant to the effect that the concurrence granted by the Director General of the National Parks and Wildlife Service, the Fourth Respondent, in relation to these development consents is also void and of no effect. The Council filed a submitting appearance only and did not appear at the hearing.

The Development Consents

2 On 19 July 2002 the First Respondent lodged a development application, being DA T6-02-402, for a 35 lot residential subdivision on Lot 233 in DP 754396 with the Council (“the Machro DA”). Lot 233 in DP 754396 is zoned 2(a) Residential under the Kempsey Local Environmental Plan 1987 (“the LEP”). It is not disputed by the parties that the development the subject of the Machro DA is permissible with consent within the 2(a) Residential zone.

3 On 24 March 2003 the Second Respondent, Eric Norman Developments Pty Limited, lodged two development applications with the Council (collectively referred to as “the Eric Norman DAs”). The first of these development applications was DA T6-03-191 which sought development consent from the Council for a 23 lot residential subdivision on Lot 511 in DP 1025337. The second, DA T6-030-186, sought development consent for a 24 lot residential subdivision also on Lot 511 in DP 1025337. Lot 511 in DP 1025337 is zoned 2(a) Residential under the LEP. It is not disputed by the parties that the development the subject of the Eric Norman DAs is permissible with consent within zone 2(a) Residential under the LEP.

4 It was agreed by the parties that the development the subject of the Machro DA and the Eric Norman DAs is likely to significantly affect threatened species habitat, and therefore:

Environmental Planning and Assessment Act 1979

Threatened Species Conservation Act 1995

5 A single SIS was lodged with the Council on 15 May 2003 in relation to the development the subject of the Machro DA and the Eric Norman DAs. The Fourth Respondent granted concurrence, subject to conditions, to the Machro DA and the Eric Norman DAs on 1 September 2003. The Council granted development consent, subject to conditions, to the Machro DA on 26 September 2003 (“the Machro Consent”) and to the Eric Norman DAs on 28 October 2003 (“the Eric Norman Consents”).

6 The Applicant raises a number of separate grounds in these Class 4 proceedings. These grounds can be summarised as follows:

State Environmental Planning Policy 71

– Coastal Protection

7 SEPP 71 commenced on 1 November 2002 and applies to the coastal zone as defined in the Coastal Protection Act 1979. The coastal zone is essentially defined as all land within one kilometre of the New South Wales coast. It is not disputed by the parties that the land in question here is within the coastal zone. SEPP 71 has been amended on a number of occasions since the Council determined to grant the Machro Consent and the Eric Norman Consents. However, the parties provided the Court with a copy of SEPP 71 as it was in September and October 2003, when the Council determined to grant the Machro Consent and the Eric Norman Consents, and all references to SEPP 71 clauses in this judgment are references to SEPP 71 as it was at this date.

8 Clause 2 of SEPP 71 sets out the aims of the policy. Of these aims, the parties agree the following are relevant to the issues in these proceedings:

(a) to protect and manage the natural, cultural, recreational and economic attributes of the New South Wales coast, and

…

(e) to ensure that the visual amenity of the coast is protected, and

…

(g) to protect and preserve native coastal vegetation, and

…

(j) to manage the coastal zone in accordance with the principles of ecologically sustainable development (within the meaning of section 6 (2) of the Protection of the Environment Administration Act 1991), and

(k) to ensure that the type, bulk, scale and size of development is appropriate for the location and protects and improves the natural scenic quality of the surrounding area, and

(l) to encourage a strategic approach to coastal management.

9 Clause 10(1) of SEPP 71 provides that the “development specified in Schedule 2 is declared to be State significant development” for the purposes of s 76A(7) of the Environmental Planning and Assessment Act 1979 (“the EP&A Act”). Schedule 2 includes:

Development comprising:

(a) subdivision of land within a residential zone into more than 25 lots, …

10 Clause 10(2) of SEPP 71 provides that the Minister is the consent authority for state significant development pursuant to s 76A(9) of the EP&A Act.

1(a) - The Machro DA
The Applicant’s arguments

11 The Machro DA is for a 35 lot subdivision in the coastal zone. The Applicant argued that SEPP 71 applies to the Machro DA. As stated above, SEPP 71 commenced on 1 November 2002. The transitional provisions of SEPP 71 are contained in cl 25 which provides that “this policy does not apply to a development application made but not finally determined before the commencement of this policy”. The Applicant noted that while the Machro DA was lodged with the Council in July 2002, before the commencement of SEPP 71, the SIS was not supplied until May 2003, after SEPP 71 commenced. The Applicant relied on Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312 (“Remath”) to argue that it was only after the SIS was supplied to the Council that the Machro DA was “made” for the purpose of the transitional provisions of SEPP 71, so that cl 25 does not apply to the Machro DA. If SEPP 71 applies to the Machro DA it is clear that, as the Machro DA is for the subdivision of land into more than 25 lots within a residential zone, cl 10(1) of SEPP 71 applies and the development the subject of the Machro DA will be state significant development. Section 76A(9) of the EP&A Act provides that the Minister is the consent authority for state significant development. Accordingly, the Applicant argued that if SEPP 71 applies so that the development the subject of the Machro DA is state significant development, the Machro Consent is void being outside the power of the Council to grant.

12 The decision of the Court of Appeal in Remath concerned s 77 of the EP&A Act before its amendment (“the unamended EP&A Act”) and cl 50, 51 and 52 of the Environmental Planning and Assessment Regulation 1994 (“the 1994 Regulation”). The regime in force at the time the relevant application was determined in Remath has since been amended. The relevant provisions are now contained, in amended form, in s 78A of the EP&A Act (“the current EP&A Act”) and cl 49 to 52 of the Environmental Planning and Assessment Regulation 2000 (“the 2000 Regulation”).

13 In Remath the Court of Appeal considered the issue of whether a development application lodged by the applicant under the unamended EP&A Act was made for the purposes of cl 11 of the Environmental Planning and Assessment (Savings and Transitional) Regulation 1998 (“the Transitional Regulation”) when an environmental impact statement was not supplied until after the amendments to the EP&A Act had commenced. Section 77(3)(d) of the unamended EP&A Act, provided that “A development application shall … where the application is in respect of designated development, be accompanied by an Environmental Impact Statement in the prescribed form prepared by or on behalf of the applicant” In Remath the Court of Appeal held that a development application was not made for the purposes of the Transitional Regulation as then in force until such time as the environmental impact statement was lodged.

14 The Applicant argued that, given s 78A(8)(b) of the current EP&A Act provides that a development application must be accompanied by … “in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats — a species impact statement…”, the reasoning applied by the Court of Appeal in Remath applies to the amended legislative regime to which the Machro DA is subject.

The First Respondent’s Arguments

15 The First Respondent does not dispute that the Machro DA was required to be accompanied by an SIS. However, the First Respondent argued that the reasoning applied by the Court of Appeal in Remath does not apply to the requirement imposed under s 78A(8)(b) of the current EP&A Act that the Machro DA be accompanied by an SIS. Accordingly, the First Respondent argued that the Machro DA was made for the purposes of the EP&A Act and cl 25 of SEPP 71 at the time the Machro DA was initially lodged with the Council and not at the time the SIS relating to the Machro DA was lodged with the Council.

16 The First Respondent argued that, unlike s 77(3) of the unamended EP&A Act and cl 45(1) and 50 of the 1994 Regulation, s 78A of the current EP&A Act and cl 49, 50 and 51 of the 2000 Regulation do not create a mandatory regime. In this regard the First Respondent submitted that:

17 The First Respondent argued that, if the consent authority has accepted the lodgement of a development application and has not subsequently rejected the development application under cl 51(2)(b), then there is a “development application” which has been made for the purpose of cl 49(1) of the 2000 Regulation even if the requirements of s 78A(8)(b) of the current EP&A Act have not been met. Accordingly, the First Respondent argued that Remath did not address the regime contained in the current EP&A Act and the 2000 Regulation and can be distinguished on this basis.

Finding on Ground 1(a)

18 As set out above, cl 25 of SEPP 71 provides that “this policy does not apply to a development application made but not finally determined before the commencement of this policy”. The reference contained in cl 25 of SEPP 71 to “a development application made” can only relate to a development application made under s 78A of the current EP&A Act. Before I can consider the parties’ arguments in relation to the application of the reasoning applied by the Court of Appeal in Remath to cl 25 of SEPP 71 it is first necessary for me to set out the relevant sections of the unamended EP&A Act and the current EP&A Act.

The Unamended EP&A Act

19 Clause 11 of the Transitional Regulation, which was considered by the Court of Appeal in Remath provided that:

The unamended EP&A Act 1979 continues to apply to and in respect of any development application made, but not determined by the consent authority, before the appointed day as if the EP&A Amendment Acts had not been enacted.

20 Section 77(3) of the unamended EP&A Act provided as follows:

(3) A development application shall

(a) be made to the consent authority;

(b) be made in the prescribed form and manner;

…

(d) where the application is in respect of designated development, be accompanied by an Environmental Impact Statement in the prescribed form prepared by or on behalf of the applicant;

(d1) if the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats, be accompanied by a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

21 Clauses 50-52 of the 1994 Regulation, as they applied at the time the applicant in Remath lodged its development application, prescribed in terms not currently relevant, the form of the Environmental Impact Statement (“EIS”) which was to accompany an application for designated development.

The Current EP& A Act

22 Section 78A(1) of the EP&A Act currently provides that:

A person may, subject to the regulations, apply to a consent authority for consent to carry out development.

23 Section 78A(2) provides that:

A single application may be made in respect of one or more of the types of development referred to in paragraphs (a)–(f) of the definition of "development" in section 4 (1).

24 Section 78A(8) provides that:

A development application must be accompanied by:

…

(b) If the application is in respect of development on land that is, or is a part of, critical habitat or is likely to significantly affect threatened species, populations or ecological communities, or their habitats — a species impact statement prepared in accordance with Division 2 of Part 6 of the Threatened Species Conservation Act 1995.

25 Clause 49 of the 2000 Regulation provides that:

(1) A development application may be made:

(a) by the owner of the land to which the development application relates, or

(b) by any other person, with the consent in writing of the owner of that land.

26 Clause 50(1) of the 2000 Regulation requires that a development application “must contain the information and be accompanied by the documents, specified in Part 1 of Schedule 1”. Clause 2(1)(F) of Pt 1 of Sch 1 to the Regulation states that:

A development application must be accompanied by … a species impact statement (in the case of land that is, or is part of, critical habitat or development that is likely to significantly affect threatened species, populations or ecological communities or their habitats).

27 Clause 51(2) of the 2000 Regulation provides:

A consent authority may reject a development application within 14 days after receiving it if:

…

(b) being an application referred to in section 78A (8) (b) of the Act, the application is not accompanied by a species impact statement referred to in that paragraph.

28 Clause 51(3) of the 2000 Regulation provides that:

An application that is rejected under this clause is taken for the purposes of the Act never to have been made.

29 In Remath Fitzgerald JA and Stein JA (with Handley JA agreeing) of the Court of Appeal considered whether, given the reference to “prescribed manner”, the wording of s 77(3)(b) of the unamended EP&A Act required compliance with s 77(3)(c), (d) and (e) of the unamended EP&A Act in order for a development application to be “made” for the purpose of cl 11 of the Transitional Regulation. Fitzgerald JA held at [47] to [49] that:

… If a development application in respect of which there has not been substantial compliance with the requirements of s 77 is accurately described as incomplete and ineffective until there is substantial compliance, it becomes obvious that it is only then that a development application is completely or effectively "made". …
… A development application in the prescribed form which is not “made” in the manner prescribed by s77(3)(c) or (d) and (e) is not "made" in the prescribed manner .
There is no rational basis for attributing a different meaning to the word “made” in cl 11 of the transitional regulation from the meaning which the same word bears in s 77 (3).

In my opinion, the remediation development application was not initially “made” in the prescribed

manner

because there was no substantial compliance with s 77(3)(d) of the unamended Act and clauses 5- to 52 of the unamended regulation. It was not “made” within the meaning of s77(3) of the unamended Act and cl 11 of the transitional regulation until 24 December 1999 when the transitional EIS was lodged.

30 There are clearly changes in the current EP&A Act and the 2000 Regulation compared to the unamended EP&A Act and the 1994 Regulation in force at the time Remath was decided. In particular the reference to the words “prescribed form” and “manner” in s 77(3) of the unamended EP&A Act are no longer in the current EP&A Act. However I note that the wording of s 78A(8)(b) of the current EP&A Act is in similar terms to s 77(3)(d) of the unamended EP&A Act considered in Remath in that the development application “must be accompanied by” an SIS if s 78A(8)(b) applies.

31 Essentially the question is whether, where an SIS is required to be lodged under s 78A(8)(b) of the current EP&A Act, that SIS must be lodged with the consent authority in order for a development application to be “made” under the current EP&A Act and 2000 Regulation and, therefore, for the purpose of cl 25 of SEPP 71. Does the removal of the words “prescribed manner” previously contained in s 77(3)(b) of the unamended EP&A Act mean that s 78A(8)(b) of the current EP&A Act should be applied differently from the reasoning adopted by the Court of Appeal in Remath that a development application is not made for the purpose of the unamended EP&A Act until an EIS in the prescribed form had been received by the consent authority?

32 The First Respondent argued that given the provisions of the 2000 Regulation, particularly cl 51 which enables a consent authority to reject, within 14 days, a development application which is not accompanied by an SIS where required, the reasoning adopted by the Court of Appeal in Remath no longer applies to the current regime. There is apparently no explanation in the Second Reading Speech as to what was intended by the provisions of the 2000 Regulation which allow for the rejection of a development application. While cl 51(3) of the 2000 Regulation refers to a rejected development application not being made, there is nothing in the Regulation stating what the position of a development application which, while not complying with s 78A of the EP&A Act, is not rejected. The First Respondent argued that, given the provisions of cl 51(3) of the 2000 Regulation, it is clearly intended that such applications can be considered “made” for the purposes of the EP&A Act and, therefore, for the purpose of cl 25 of SEPP 71. I do not agree however. There is no specific provision to that effect and it would appear contrary to the clear words of s 78(8)(b) of the EP&A Act and cl 50(1) of the 2000 Regulation, both of which refer to the requirement for an SIS to accompany a development application.

33 I accept the Applicant’s submissions that there is no material difference in the amended EP&A Act and the 2000 Regulation as compared to the unamended EP&A Act and 1994 Regulation considered by the Court of Appeal in Remath. The First Respondent’s submission that cl 51 of the 2000 Regulation grants a consent authority a discretion to elect to continue dealing with a development application if the required documents do not accompany it at the time of lodgement, does not support an interpretation that a development application is “made” because of the Council’s election not to reject it. This argument cannot, in my view, be sustained in the face of the clear wording of s78A(8)(b) of the EP&A Act.

34 Clause 51 of the 2000 Regulation provides a mechanism whereby a development application which does not comply with the EP&A Act may be rejected. It does not grant to a consent authority any power or discretion to determine a development application which has not been made in accordance with the requirements imposed by the EP&A Act which, contrary to the First Respondent’s submission, are mandatory in nature. Accordingly, I consider that there is an ongoing requirement, similar to that identified in Remath, for the documents required by the EP&A Act and 2000 Regulation to be lodged with the consent authority in order for a development application to be “made” for the purposes of the EP&A Act and, therefore, for the purpose of cl 25 of SEPP 71.

35 As the SIS relating to the Machro DA was not submitted to the Council until May 2003, by which time SEPP 71 had commenced, the Machro DA was not “made” until this time and the transitional provisions contained in cl 25 of SEPP 71 do not apply. Accordingly, SEPP 71 applies to the Machro DA and, by virtue of cl 10(1) of SEPP 71, the development the subject of the Machro DA is state significant development. As the Minister and not the Council is the proper consent authority for state significant development, the Machro Consent is void as it is outside the Council’s power to grant it.

1(b) - The Eric Norman DAs

36 It is common ground between the parties that the two Eric Norman DAs were lodged after the commencement of SEPP 71.

The Applicant’s Arguments

37 The Applicant argued that cl 10(1) of SEPP 71 applies so that the development the subject of the two Eric Norman DAs is state significant development for which the Minister is the appropriate consent authority under s 76A(9) of the EP&A Act. As set out above, cl 10(1) of SEPP 71 provides that the “development specified in Schedule 2 is declared to be state significant development” and Sch 2 includes development comprising the “subdivision of land within a residential zone into more than 25 lots.”

38 The Applicant submitted that cl 10(1) of SEPP 71 is concerned with “development” rather than “development applications”.

39 “Development” is defined broadly under s 4 of the EP&A Act and is not defined by reference to the making of a development application. By virtue of s 11 of the Interpretation Act 1987 words in SEPP 71, being an instrument made under the EP&A Act, have the same meaning as they have in the EP&A Act. Accordingly the Applicant argued that the development the subject of the two Eric Norman DAs should be considered as one development, being a 47 lot subdivision, for the purpose of determining whether the development falls with the class identified in Sch 2 of SEPP 71, as referred to in cl 10(1).

40 The Applicant argued that this interpretation is in line with the intention of SEPP 71, being the protection of the coastal environment. This intention would be frustrated if, by dividing a development into two or more separate development applications, a developer could avoid the operation of cl 10(1) of SEPP 71. In this regard, the Applicant noted that the Eric Norman DAs were lodged at the same time and that:

41 In contrast, the Second Respondent submitted that cl 10(1) and Sch 2 of SEPP 71 should be interpreted as being confined to development the subject of a development application. Accordingly, the Second Respondent submitted that where, as here, two development applications were made, the development the subject of the two development applications is not a single development for the purposes of determining whether it is state significant development pursuant to cl 10(1) of SEPP 71. In this regard the Second Respondent submitted that the machinery of the EP&A Act as a whole relates to development applications rather than development per se. In support of this argument the Second Respondent submitted that:

“as are of relevance to the development the subject of the development application”

Waverley Council v C. M. Hairis Architects

Starray Pty Limited v Sydney City Council

42 Further, the Second Respondent argued that there may be cogent commercial reasons why a developer may not wish to subdivide the entirety of its land at one time, not least being the obvious cost in terms of compliance with consent conditions, such as those relating to s 94 contributions and infrastructure development, which must be complied with before the developer can expect to make any return on the development.

Finding on Ground 1(b)

43 I accept the Second Respondent’s argument that the consent process which the EP&A Act regulates is one which is driven by development applications. It is not open to a consent authority to determine a development application by reference to activities which are the subject of a separate, albeit concurrent, development application.

44 While cl 10(1) and Sch 2 of SEPP 71 refer to “development” those provisions should be confined to mean “development the subject of a development application” as the provisions of SEPP 71 must be read in the context of the regime for development consent contained in the EP&A Act. If a development is state significant development under the EP&A Act, then the Minister becomes the consent authority for development applications concerning state significant development, and various other consequences relating to the manner in which development consents are to be determined and may be challenged, apply. Thus a finding that a certain development is state significant development only has meaning in the context of a development application which has been lodged for that development.

45 Accordingly, the words “development” in cl 10(1) and Sch 2 of SEPP 73 should be interpreted as being confined to “development the subject of a development application”. Given this, the Applicant’s argument that the development the subject of the Eric Norman DAs is state significant development and, accordingly, that the Minister and not the Council is the consent authority for the Eric Norman DAs, must fail.

46 Clause 18(1) of SEPP 71 relevantly provided that:

(1) A consent authority must not grant consent for:

…

(b) subdivision of land within a residential zone that is not identified as a sensitive coastal location into more than 25 lots, or

…

unless:

(d) the Minister has adopted a master plan for the land, or

(e) the Minister, after consulting the Coastal Council, has waived the need for a master plan for the land under subclause (2).

47 The Applicant argued that cl 18 had not been complied with for either the Machro Consent or the Eric Norman Consents.

2(a) – The Machro DA

48 As I found in Ground 1(a) that SEPP 71 applied to the Machro DA and that the Minister is the appropriate consent authority, cl 18(1) of SEPP 71 applies. As set out above, cl 18 of SEPP 71 prohibits a consent authority from granting consent to the Machro DA unless a master plan has been adopted by the Minister in relation to the land, or the Minister has waived the requirement for a master plan. It is not disputed by the parties that no master plan has been adopted or that the Minister has not waived the requirement for any such master plan. Accordingly cl 18 of SEPP 71 has not been complied with and the Machro Consent must be invalid on this ground also.

2(b) – The Eric Norman DAs
The Applicant’s Arguments

49 The Applicant argued that cl 18(1)(3) of SEPP 71 prohibits the Council from determining the Eric Norman DAs unless a master plan has been adopted by the Minister in relation to the land, or the Minister has waived the requirement for a master plan. It is not disputed that no master plan has been adopted nor has the Minister waived the requirement for such a plan.

50 Clause 17 of SEPP 71 defines a “master plan” as follows:

Master plan means a document consisting of written information, maps and diagrams that outlines proposals for development of the land to which the master plan applies.

51 The Applicant argued that the requirement for a master plan is not limited to developments which are state significant development under cl 10(1) of SEPP 71. In this regard the Applicant argued that even if I am satisfied, as I am, that the development the subject of the Eric Norman DAs cannot be aggregated for the purpose of determining whether the development is state significant development, and accordingly is not state significant development, a master plan was still required under cl 18(1) of SEPP 71.

52 The Applicant argued that the word “proposals” in the definition of “master plan” contained in cl 17 of SEPP 71 indicates that master plans may relate to development which is intended to be or which is the subject of two or more development applications. The Applicant argued that this indicates that cl 18(1) is directed at the subdivision of land per se rather than development the subject of development applications and that the development the subject of the Eric Norman DAs must be aggregated for the purpose of determining whether a master plan is required under cl 18(1) of SEPP 71.

The Second Respondent’s Arguments

53 The Second Respondent submitted that the provisions of cl 18(1) of SEPP 71 do not apply to the Eric Norman DAs. Accordingly, the Second Respondent argued that there was no prohibition on the Council determining the Eric Norman DAs without a master plan first being adopted by the Minister. The Second Respondent relied on the same submissions that it made in relation to the Proper Consent Authority Ground to support its submission that the development the subject of the Eric Norman DAs cannot be aggregated for the purposes of cl 18(1) of SEPP 71.

Finding on Ground 2(b)

54 The purpose of master plans, as the definition contained in cl 17 of SEPP 71 suggests, is to provide a mechanism whereby an area of land which is larger than that likely to be covered by a single development application is subject to a plan, presumably to encourage its development in an integrated manner. Clause 18(1) of SEPP 71 refers to the subdivision of land into more than 25 lots where it is in a residential zone.

55 There is no reference to “development” in cl 18(1). Accordingly, the arguments canvassed in relation to issue 1(b) as to whether development is limited to development the subject of a development application do not, in my view, arise in relation to cl 18(1) of SEPP 71. Therefore, the development the subject of two development applications which collectively apply for 47 subdivisional lots is, in my view, to be regarded as the “subdivision of land … into more than 25 lots” as referred to in cl 18(1). Given this, it is appropriate that the subdivision development the subject of the Eric Norman DAs be aggregated for the purpose of determining whether a master plan is required pursuant to cl 18(1). This conclusion is clearly supportive of the aims of SEPP 71, particularly the aim contained in cl 2(l) of SEPP 71 which provides that SEPP 71 aims “to encourage a strategic approach to coastal management.”

56 I find that the Council as consent authority, was prohibited from granting consent to the Eric Norman DAs in the absence of either a master plan adopted by the Minister for the development, or a decision by the Minister to waive the requirement for a master plan. Accordingly, the Eric Norman Consents are void as the Council acted ultra vires in granting these consents.

57 Clause 7(b) of SEPP 71 provides that a consent authority must take into account the matters set out in cl 8 of SEPP 71 in determining a development application relating to land to which SEPP 71 applies. The Applicant argued in the alternative that, if the Council is the correct consent authority, the following parts of cl 8 which are relevant to the Machro DA and the Eric Norman DAs and were not taken into account by the Council in determining these development applications:

(a) the aims of this Policy set out in clause 2,

…

(d) the suitability of development given its type, location and design and its relationship with the surrounding area,

(e) any detrimental impact that development may have on the amenity of the coastal foreshore, including any significant overshadowing of the coastal foreshore and any significant loss of views from a public place to the coastal foreshore,

(f) the scenic qualities of the New South Wales coast, and means to protect and improve these qualities,

(g) measures to conserve animals (within the meaning of the Threatened Species Conservation Act 1995) and plants (within the meaning of that Act), and their habitats,

…

(i) existing wildlife corridors and the impact of development on these corridors,

3(a) – The Machro DA

58 I have found that SEPP 71 applies to the Machro DA so that the Minister, and not the Council, is the proper consent authority in relation to the Machro Consent, with the consequence that the Machro Consent is void. If I am wrong in relation to this then SEPP 71 does not apply to the Machro DA at all because the development application is subject to the transitional provisions in cl 25 of SEPP 71 and this ground cannot arise in relation to the Machro DA.

3(b) – The Eric Norman DAs

59 Given that I have found that the Eric Norman Consents are void for ultra vires as no master plan was adopted or the requirement for such a master plan was not waived by the Minister, it is not strictly necessary for me to determine the Clause 7 Ground. However, in case I am wrong on that ground and as the Court had the benefit of the parties’ argument in relation to this ground I will briefly set out my findings in relation to the Clause 7 Ground for the Eric Norman DAs.

The Parties Arguments

60 The Applicant argued that the Assessment Report prepared by the Council in relation to the Eric Norman DAs (contained at Tab 30 of Exhibit A) indicates that, other than referring to cl 8, the Council has not considered the matters required to be considered by cl 7. The Applicant relied on Weal v Bathurst City Council (2000) 111 LGERA 181 (“Weal”) to establish that simply referring to a mandatory consideration is not sufficient unless the matters are given real consideration. Further, the Applicant relied on Parramatta v Hale (1982) 47 LGRA 319 (“Hale”) to support its case that such a failure to consider these matters renders the Eric Norman Consents void.

61 The Second Respondent argued that an examination of the Concurrence Report prepared by the Fourth Respondent (contained at Tab 28 of Exhibit A and Exhibit C) and the SIS (Tab 13 of Exhibit A), which were before the Council at the time of its determination to grant the Eric Norman Consents, shows that the matters listed in cl 8 of SEPP 71 were adequately addressed by the Council in determining the Eric Norman DA. Further, the Second Respondent argued that the Applicant has failed to establish any evidentiary basis to support its contention that the Council failed to take into account the matters listed in cl 8 of SEPP 71. In this regard the Second Respondent noted the statement of Moffitt P in Hale at p 345-346 to the effect that an inference that there has been a failure to take into account a relevant consideration is one which should only be made after “anxious consideration.” Further, the Second Respondent relied on the decision of Somerville v Dalby (1990) 69 LGRA 422 to support the proposition that an assessment report prepared by a consent authority does not need to refer to all the matters which the consent authority took into account in determining the development application.

62 Following the Second Respondent’s submissions, the Applicant conceded that the matters in subclauses (g) and (i) of cl 8 of SEPP 71 were considered in the SIS and that accordingly, the Applicant only relied on the matters identified in subclauses (a), (d) and (f) of cl 8 of SEPP 71, as set out above, to support its arguments in relation to this ground.

63 The Assessment Report prepared by the Council officers for the Council in relation to the Eric Norman DAs (and the Machro DA) states (Exhibit A, Tab 30 at p 332) that:

However Council must consider matters listed in Clause 8 of the Policy (Appendix S): -

It is considered that the matters identified by Clause 8 have been adequately addressed including potential impacts on Aboriginal heritage, and the proposals are not inconsistent with the Policy.

64 Further, the Appendices to the Assessment Report:

As set out above, consideration (a) in cl 8 is the “aims of this Policy set out at clause 2”. The aims of SEPP 71, as set out in cl 2, were not referred to in the Assessment Report.

65 Numerous cases in this Court have had to consider the scope and nature of council consideration of development applications. The decision of the Court of Appeal in Hale established that a failure by a consent authority to give “real” consideration to the provisions in an environmental planning instrument which a consent authority is required to take into account in determining a development application is an error of law which renders that development consent invalid. However, as the Second Respondent correctly submitted, Hale is also authority for the proposition that an inference that a consent authority failed to give real consideration to such a matter can only be drawn after “anxious consideration”.

66 In Weal Giles JA held at 201 that:

Taking relevant matters into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration

.

67 Recently these authorities were considered in Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401 where McClellan J set out at [37] a distillation of the principles in Hale and Weal among others, including:

· the onus falls upon the challenger to satisfy a court that the relevant discretion has miscarried

· when exercising its decision-making power, an administrative body must give “proper, genuine and realistic consideration” to the merit of the matter: see Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292; Paramanamtham v Minister for Immigration and Multicultural Affairs (1998) 94 FCR 28 at 64. Mere advertence to a matter may not be sufficient. Zhang at NSLLR 601;

…

· legally sufficient consideration of a relevant issue may require consideration of conditions which could ameliorate any prospective harm to the environment from the development;

· generally speaking, understanding the scope of a problem is a prerequisite to a lawful decision with respect to it;

…

68 The evidence suggests that there was not real and adequate consideration by the Council of the relevant aims of SEPP 71 (cl 8(a)), the suitability of development given its type, location and design and its relation with the surrounding area (cl 8(b)), and the scenic qualities of the New South Wales coast and means to protect and improve those qualities (cl 8(f)) in its consideration of the Machro DA and the Eric Norman DAs. There is no evidence that the specific aims of the policy were drawn to the Council’s attention given there is no mention of these in the Assessment report. It is not, in my view, sufficient for the Council to argue that the numerous objections attached to the report raised matters generally which were relevant to the aims of SEPP 71 and the other matters referred to in cl 8(d) and (f) given the complete absence of any discussion or acknowledgement of these matters in the Assessment report.

69 I note that Hemmings J said in Somerville v Dalby at p 429 that:

… there is no duty to refer to all matters actually considered or assessed in the determination of a development application … It is usually sufficient to refer only to the most important matters or those having determining weight.

70 However, given that SEPP 71 provides mandatory requirements as to what must be considered in assessing development applications to which the policy applies, I do not consider that the comments made by Hemmings J in Somerville v Dalby apply in the circumstances before me. Accordingly, the Applicant must succeed in relation to this ground.

71 The Applicant argued that the Council took into account an irrelevant consideration, being the s 94 contributions which the Council would not receive if it refused development consent, in determining whether to grant consent to the Eric Norman DAs and the Machro DA. In this regard the Applicant relied on the following comments made in the Council report (Tab 30 of exhibit A at p 346):

Council is also obliged to consider both the broader economic benefits of the subdivision as a result of opportunities for further residential construction and the direct costs to the community in providing open space, drainage, roads, sewerage and water, infrastructure planned for the area.

For the 82 lots proposed, the developers are required to contribute $795,000 towards those services under Council’s existing developer contributions plans.

The potential loss of those contributions would require Council to review those plans and either abandon or significantly modify existing programs.

72 As, for the different reasons set out above, I have determined that the Machro Consent and the Eric Norman Consent are void on the grounds of ultra vires it is not strictly necessary that I consider this ground. While I heard brief arguments on this ground from the parties I do not consider that argument was sufficient for me to adequately decide this issue. Accordingly I decline to do so.

Ground 5 - The Concurrence of the Director General

73 Given my finding that the Minister and not the Council was the appropriate consent authority for the Machro DA it is not strictly necessary that I consider the Applicant’s arguments in relation to the concurrence granted by the Fourth Respondent to the Machro DA. Similarly, given my finding that the Eric Norman Consents are, for the reasons set out above, invalid, it is also not strictly necessary for me to consider the Applicant’s arguments in relation to the validity of the concurrence granted by the Fourth Respondent to the Eric Norman DAs. Further, the issue of the concurrence of the Fourth Respondent becomes somewhat theoretical in relation to the Machro DA. As a result of my finding that the Minister was the appropriate consent authority, the concurrence of the Fourth Respondent is not required in relation to the Machro DA. Rather s 79B(3) of the EP&A Act prohibits the Minister from granting development consent unless he has first consulted with the Minister administering the Threatened Species Conservation Act 1995.

74 As, however, the validity of the concurrence granted by the Fourth Respondent to the Machro DA and the Eric Norman DAs occupied a lot of the hearing, I think it is appropriate that I set out my preliminary findings, to the extent I am able to make them, in relation to this ground. As will become clear, I am however unable to finally resolve the issues raised by the parties.

75 Section 79B(3) of the EP&A Act states that:

Consultation and concurrence—threatened species development consent cannot be granted for:

(a) development on land that is, or is a part of, critical habitat, or

(b) development that is likely to significantly affect a threatened species, population, or ecological community, or its habitat,

without the concurrence of the Director-General of National Parks and Wildlife or, if a Minister is the consent authority, unless the Minister has consulted with the Minister administering the Threatened Species Conservation Act 1995 .

76 Section 79B(5) of the EP&A Act specifies the matters which must be considered by the Director General in deciding whether or not to grant concurrence as follows:

(a) any species impact statement that accompanied the development application,

(b) any assessment report prepared by the consent authority,

(c) any submissions received concerning the development application,

(d) any relevant recovery plan or threat abatement plan,

(e) whether the development proposed is likely to reduce the long-term viability of the species, population or ecological community in the region,

(f) whether the development is likely to accelerate the extinction of the species, population or ecological community or place it at risk of extinction,

(g) the principles of ecologically sustainable development (as described by section 6 (2) of the Protection of the Environment Administration Act 1991 ),

(h) the likely social and economic consequences of granting or of not granting concurrence.

77 Under s 79B(8) of the EP&A Act concurrence can be refused or granted conditionally or unconditionally. Under s 79B(9) if the Council grants consent to the carrying out of development for which a concurrence has been granted, the Council must grant the consent subject to any conditions imposed on the concurrence.

The Concurrence

78 As stated above, it was agreed by the parties that the development the subject of the Machro DA and the Eric Norman DAs is likely to significantly affect threatened species habitat, and hence that the development application was required to be accompanied by an SIS and that the concurrence of the Fourth Respondent was required pursuant to s 79B(3) of the EP&A Act before consent could be granted by a consent authority to the development application.

79 The Director General, by his delegate Andrew McIntyre, Manager, Threatened Species, Northern Directorate, purported to grant concurrence to the Machro DA and the Eric Norman DAs on 1 September 2003. The evidence of the decision made by the delegate of the Director General of National Parks and Wildlife, to grant concurrence in the bundle of documents tendered consisted of:

Following consideration of the matters listed in Section 79B(5) of the Environmental Planning and Assessment Act 1979, I have decided to grant concurrence to the Council’s requests for concurrence for the above three proposed developments, for the reasons set out in Section 10 of the attached report and subject to the conditions outlined in Section 11 of the attached report.

I have considered the requests for concurrence from Kempsey Shire Council in accordance with Section 79B(5) of the Environmental Planning and Assessment Act 1979. I have decided to grant concurrence to the proposed development for the reasons set out in Section 10 of this report and subject to the conditions outlined in Section 11 of this report.

80 The two conditions of concurrence which require consideration here are condition 1 and condition 7. Condition 1 provides as follows:

The Applicant for development consent (the Applicant) must undertake the development in accordance with the ameliorative measures documented in the Species Impact Statement (SIS) that are currently extant and referred to in Sections 2.2 and 2.3 of this report, unless modified by the following conditions.

Reason

: To ensure compliance with the ameliorative measures proposed in the SIS and currently extant.

81 Condition 7 provides as follows:

Prior to both any construction certificate being issued for any subdivision or engineering works the subject of the development and the development being commenced, the Applicant must submit to the Council evidence in writing that the Applicant has entered into an arrangement with the Director-General of National Parks and Wildlife in respect of the acquisition or embellishment of land containing habitat similar to that within the subject site and/or providing known or potential habitat for threatened species known or likely to occur within the subject site, and/or the conservation and management of those threatened species known or likely to occur within the subject site.

Reason

: To fund the development and implementation of measures to conserve or increase the conservation status, security and management of those threatened species and habitats known or likely to occur on the subject site, as compensation for the loss of habitat for threatened species on the subject site.

82 Concurrence conditions 1 and 7 were respectively incorporated, as the Council was required to do by s 79B(9) of the EP&A Act, as consent conditions 22(i) and (vii) of the Machro Consent and consent conditions 20(i) and (vii) of the Eric Norman Consents.

83 As set out above, a single SIS was prepared in relation to both the Machro DA and the Eric Norman DAs. Section 9 of the SIS is headed “Measures to Mitigate Adverse Impacts”. This section of the SIS contains five alternatives for mitigating the impacts of the proposals on the threatened species which the SIS identifies as being located on the subject land. These alternatives are as follows:

Given the zoning of the site for development, significant investment in planning development of the site, lack of non-floodplain cleared land in the locality and the desire for further growth, this option is identified as unsuitable.

“$160,000 to be used for identification and protection of suitable habitat in, or nearby the locality and/or more detailed planning for areas

at risk from development in the locality to protect the identified threatened species.”

given the nature of the development described in this document and the constraints on providing on-site mitigating measures … the most appropriate strategy that has been identified is one of compensatory habitat. For that reason a Species Impact Management Plan for the study area is not considered relevant at this point in time

following discussions with National Parks and Wildlife Service, the option of translocation has been considered as an ameliorative measure

84 The Concurrence Report refers to the conclusions of the SIS as follows at p 9:

Given that the impacts of the proposed developments on threatened species and their habitats could neither be avoided or ameliorated, the applicants therefore considered and put forward a proposal to compensate for the impacts. This proposal essentially involved the provision of $160 000 to undertake one or more of:

· The identification and protection of areas of vegetation in or near the locality that contained habitat of at least some of the threatened species adversely impacted upon by the proposed developments, through Voluntary Conservation Agreements or gazettal as lands reserved as NPWS estate under the National Parks and Wildlife Act 1974.

· Fauna and flora surveys, and subsequent development and implementation of a strategy by Council to identify and conserve areas of high natural heritage conservation and appropriately manage development in the South West Rocks area.

The applicants’ preference was to provide the proposed compensatory habitat funds to the NPWS for the latter to determine the most appropriate form of disbursement.

85 The Concurrence Report refers to the proposal contained in the SIS as follows at p 12-13:

The NPWS’s approach to addressing the impacts of proposed developments on threatened species and their habitats is: firstly, to avoid the impacts; secondly, to ameliorate the impacts if the first option is not possible, and thirdly to compensate off-site for impacts if neither of the first two options are considered practicable. This approach was communicated to the applicants in the DGRs and utilised in the SIS, resulting in the conclusion that compensation was the only viable option for the applicants.

…

The $160 000 mentioned in the SIS as compensation for the loss of threatened species habitat on the subject site is an amount proposed by the developer and is not necessarily acceptable to the NPWS. One application of funds provided by a developer to compensate for the loss of threatened species is the acquisition of private lands for addition to the NPWS estate, thereby substantially enhancing the conservation security and management for threatened species of those lands. …

86 The Concurrence report concluded at p 21 that:

… I have decided to grant concurrence to the three proposed developments, subject to the conditions detailed in Section 11 of this report. The reasons for this decision are:
…
On the available evidence, the proposed development, as ameliorated by the conditions of concurrence, is unlikely, in the opinion of the NPWS, to significantly compromise the regional viability of any threatened species known to occur on the subject site.

Generally, the impacts of the proposals on the threatened species as considered in the SIS and additional information provided by the applicants will be ameliorated by the effective implementation of the measures outlined in the SIS and the conditions of concurrence detailed in section 11 of this report. …

NPWS has considered the option of refusing concurrence … this option is not appropriate … for the following reasons:

…

The impacts of the proposed development on threatened species and their habitats are considered to be sufficiently ameliorated at the local and regional scales, if not the scale of the site of the proposed developments, by the proposed concurrence conditions, in particular, the “compensatory habitat payment.”

87 The Applicant’s Points of Claim assert that the concurrence given by the Fourth Respondent’s delegate in relation to both the Machro DA and the Eric Norman DAs was dependent on the imposition of a condition requiring the making of a “compensatory habitat payment” by the First and Second Respondents and;

88 Further the Applicant’s Points of Claim assert that condition 22(i) of the Machro Consent and condition 19(i) of the Eric Norman Consents (condition 7 of the concurrence):

89 The Points of Claim do not represent the arguments ultimately put to me by the Applicant. I found the Applicant’s case in relation to this ground somewhat confusing although the Court was certainly assisted by a second set of submissions made by the parties in response to questions posed by me after the hearing was over. The Applicant’s case was ultimately summarised by the following three alternative arguments:

90 The Applicant accepted that its arguments in relation to this ground must fail if the making of a compensatory habitat payment by the First and Second Respondents:

91 The Applicant’s primary arguments in relation to this ground were directed at challenging the concurrence (rather than the conditions of that concurrence) because of alleged defects in the decision making process followed by the delegate of the Fourth Respondent, namely acting beyond power in seeking to impose a compensatory habitat payment and taking into account an irrelevant consideration, being the compensatory habitat payment.

92 The Applicant argued that the SIS makes only one proposal to mitigate the impacts of the development the subject of the Eric Norman DAs and the Machro DA and that proposal is that the “developers provide $160,000 to be used for the identification and protection of suitable habitat in, or nearby, the locality and/or more detailed planning for areas at risk from development in the locality to protect the identified threatened species.” The Applicant argued that the statements made by the delegate of the Director General as set out at par 79 above, make it clear that concurrence was granted for the reasons set out in the Concurrence Report. The Applicant noted that, as set out above, the Concurrence Report states at p 23 that:

The impacts of the proposed development on threatened species and their habitats are considered to be sufficiently ameliorated at the local and regional scales, if not the scale of the site of the proposed developments, by the proposed concurrence conditions, in particular, the “compensatory habitat payment.”

93 The Applicant argued that the Concurrence Report makes it clear that the delegate of the Fourth Respondent took into account the making of a compensatory habitat payment by the First and Second Respondents in granting concurrence to the Machro DA and the Eric Norman DAs. Further the Applicant argued that the Concurrence Report makes it clear that the grant of concurrence was dependant on the imposition of a condition requiring the First and Second Respondents to make a compensatory habitat payment.

Power

94 The Applicant argued there is no power conferred by the National Parks and Wildlife Act 1974 (“the NPW Act”) or any other Act which permits the Director General to grant concurrence to a development application subject to a condition requiring a payment aimed at compensating for the habitat which will be destroyed as a result of the carrying out of the development the subject of the development application. In this regard, the Applicant relied on the decision of Cowdroy J in Meriton Apartments Pty Limited v Minister Urban Affairs and Planning (2000) 107 LGERA 363 (“Meriton”) at [45] and the cases referred to therein to the effect that: “A public authority is not permitted to impose a financial burden upon a citizen in the absence of clear and plain statutory language.” Accordingly, the Applicant argued that the decision of the Fourth Respondent to require such a payment was ultra vires.

95 The Applicant argued that the decision of the Court of Appeal in Rockdale Municipal Council v Tandel Corporation Pty Limited (1975) 34 LGRA 196 (“Tandel”) does not decide the matter finally. The Applicant argued that while this decision is authority that a condition requiring the payment of money may be imposed in the absence of an express power regarding the imposition of such conditions, it does not deal with the issue of whether the Fourth Respondent has the power to accept such a payment under the NPW Act. The Applicant argued that in requiring a compensatory habitat payment the Director General was effecting a tax.

96 Further, the Applicant argued that under s 79B(9) of the EP&A Act it is the consent authority, and not the Fourth Respondent, who must impose any concurrence conditions as a condition of consent. Section 94 of the EP&A Act limits the circumstances in which a consent authority can impose a condition of consent requiring the payment of money. No applicable contributions plan including conservation objectives has been adopted by the Council, as required by s 94(11), so that no contribution for a compensatory habitat payment can be legally required under s 94. Accordingly, the Applicant argued that even if the Fourth Respondent had the power to grant concurrence subject to a condition requiring a compensatory habitat payment, the condition is still invalid as it is the consent authority and not the Fourth Respondent who must ultimately impose and enforce the concurrence conditions and the consent authority lacks the power to impose a condition requiring a compensatory habitat payment.

Fundamental Flaw/Uncertainty

97 Alternatively, the Applicant argued that conditions 1 and 7 do not impose any requirement on the developers to make a compensatory habitat payment or, if they do require the developers to make a compensatory habitat payment, are so uncertain, applying Mison v Randwick Municipal Council (1991) 23 NSWLR 734 (“Mison”), as to be unenforceable. The Applicant further argued, in the alternative, that if such a condition requiring the payment of a compensatory habitat payment was not ultimately imposed, then the grant of concurrence was fundamentally flawed as it was intended to make the concurrence conditional on the imposition of such a condition.

98 The Applicant argued that if its argument is correct and conditions 1 and 7 are void, the conditions are not severable as they were fundamental to the decision made by the Fourth Respondent to grant concurrence. Accordingly, the Applicant argued that the conditions are not severable with the result that the entire concurrence is void and the Eric Norman DAs and the Machro DA are also void.

99 The Fourth Respondent argued that the Applicant’s pleadings and arguments as originally articulated did not reveal any valid ground for challenging the validity of the concurrence as “fundamental flaw” is not a legally recognised ground of administrative review. Accordingly, the Fourth Respondent argued that the Applicant’s arguments in relation to this ground must be recast in terms of arguments that:

100 The Fourth Respondent conceded that the Concurrence Report did consider whether a condition requiring the making of a compensatory habitat payment ought to be imposed. However, the Fourth Respondent argued that the grant of concurrence by the Fourth Respondent was not dependant on the imposition of a condition requiring the making of any compensatory habitat payment and the conditions imposed did not require such a payment. In this regard the Fourth Respondent relied on the wording of the conditions themselves as well as the documentary evidence that:

(a) a monetary amount was not agreed and it seemed at risk of shrinking to insignificance by the time the developers took costs out;

101 Similarly, the First Respondent argued that, while the Concurrence Report did consider whether such a compensatory habitat payment ought to be imposed, the concurrence granted by the Fourth Respondent was not dependant on the imposition of a condition requiring the making of a compensatory habitat payment.

102 In contrast to the submissions of the First and Fourth Respondent, the Second Respondent argued that the Director General had imposed a condition requiring the payment of a compensatory habitat payment as a condition of concurrence or alternatively, that such a payment could satisfy the conditions imposed.

103 The Fourth Respondent submitted that condition 1 was a standard condition which, in the context of the particular SIS relating to the Machro DA and the Eric Norman DAs, had no effective operation. As set out above, condition 7 requires the developers to enter into an agreement with the Fourth Respondent:

in respect of the acquisition or embellishment of land containing habitat similar to that within the subject site and/or providing known or potential habitat for threatened species known or likely to occur within the subject site, and/or the conservation and management of those threatened species known or likely to occur within the subject site

104 The Fourth Respondent argued that this condition could be satisfied by measures other than the developers agreeing to make a payment to the Fourth Respondent, such as the developers obtaining and transferring to the Fourth Respondent land containing relevant threatened species habitat. Such measures are clearly within the power of the Director General of the National Parks and Wildlife Service (“NPWS”) to impose given her responsibilities and powers under the NPW Act.

105 The First Respondent similarly argued that condition 7 requires the acquisition or embellishment of land to satisfy the condition and does not require the making of a compensatory habitat payment.

106 The Second Respondent, in contrast to the arguments made by the First and Fourth Respondents, argued that condition 7 requires the carrying out of the ameliorative measures identified in the SIS by the NPWS and that the Respondents are to facilitate this by making a payment of $160,000 as indicated in the SIS.

Are the conditions uncertain?

107 The Respondents submitted that the fact that the final terms of the arrangement to be reached between the Respondents had not yet been agreed on did not affect the validity of condition 7 as the condition will become certain once the Respondents had settled on an arrangement and a construction certificate would not be issued until such time as the First and Second Respondents can demonstrate that they have in fact entered into such an arrangement with the Fourth Respondent. Accordingly, the Respondents argued that condition 7 meets the test for certainty propounded in Mison.

Are the conditions severable?

108 Further, the First and Second Respondents argued that even if conditions 1 and 7 are void for uncertainty, these conditions are severable from the concurrence and from the Eric Norman DAs and the Machro DA. In contrast, the Fourth Respondent agreed with the Applicant’s submission that condition 7 is not severable from the concurrence but disputed the contention that this voids the Eric Norman DAs and the Machro DAs. Rather, the Fourth Respondent submitted that s 25B of the Land and Environment Court Act 1979 permits the Court to suspend the operation of the consents pending the grant of a valid concurrence by the Fourth Respondent.

109 The Fourth Respondent noted that no declaration is being sought as to the proper meaning of condition 7 in these proceedings. However, the Fourth Respondent argued that, applying ordinary principles of statutory construction:

Interpretation Act 1987

Irrelevant consideration

110 In relation to the irrelevant consideration argument, the Fourth Respondent argued that she was bound to consider the proposal contained in the SIS in determining to grant concurrence as s 79B(5) of the EP&A Act requires the Director General to consider the matters listed in that section in determining whether to grant concurrence. The SIS is one of the specified matters. The Fourth Respondent argued that the obligation on the Director General to consider the proposal made in the SIS is not affected by the fact that the proposal may be beyond the power of the Director General to accede to.

111 The Respondents argued that the power of the Director General to impose conditions when granting concurrence pursuant to s 79B(8) of the EP&A Act is unlimited so that the principles in Rockdale Municipal Council v Tandel Corporation Pty Limited (1975) 34 LGRA 196 (“Tandel”) apply. In this regard the Respondents argued that s 94 is not relevant to determining the scope of the Director General’s power as s 94 is directed only to conditions imposed by consent authorities and not at conditions imposed on a grant of concurrence. Further the Second Respondent noted that s 8(7)(b) and (c) of the NPW Act permits the Fourth Respondent to:

(b) … enter into arrangements for the carrying out of such works as the Director-General considers necessary for or in connection with the protection and care of fauna and the protection of native plants,

(c) … undertake such scientific research as the Director-General considers necessary for or in connection with the preservation, protection and care of fauna and the protection of native plants and other flora, either separately or in conjunction with other persons or bodies,

Finding
What does the decision to grant concurrence consist of?

112 The Applicant argued that the decision of the Director General’s delegate to grant concurrence must be considered separately from the conditions placed on that concurrence. I agree with the Fourth Respondent’s submission that the concurrence and conditions cannot be divorced as both reflect the exercise of the one function by the Director General’s delegate. Clearly the decision and conditions are one and the same in light of the wording of the decision at par 79 above. In order therefore to decide what the substance of the concurrence is it is also necessary to construe the conditions.

113 I agree with the Fourth Respondent that there is a fundamental inconsistency in the Applicant’s argument that the concurrence is invalid because:

Construction of the concurrence and conditions

.

114 The Fourth Respondent correctly submitted that there is no legal requirement that a Concurrence Report be prepared nor any requirement as to the contents of such a report if produced. There are no legislative requirements imposed on the Fourth Respondent in relation to the giving of reasons or the form of those reasons. The concurrence decision dated 1 September 2003 and the accompanying conditions should be interpreted on their face, particularly as the conditions are incorporated into the development consent conditions imposed under the Machro DA and Eric Norman DAs by the Council, as required by s 79B(a) of the EP&A Act. There is no reference in conditions 1 or 7 to the Concurrence Report and it does not form part of the conditions.

Condition 1

115 An examination of the documents referred to in condition 1, that is, the SIS and sections 2.2 and 2.3 of the Concurrence Report clearly show that there are no extant ameliorative measures in the SIS as referred to in s 2.2 and s 2.3 of the Concurrence Report. In other words condition 1, which refers to extant ameliorative measures in the SIS, imposes no obligation on anybody to do anything. In its written submissions the Fourth Respondent suggested one conclusion the Court could draw is that the condition was satisfied. Given that there is nothing necessary to be done to satisfy the condition, such a finding is unwarranted. I accept the Fourth Respondent’s oral submission that the condition can be considered superfluous as it has no work to do. This does not render the concurrence void, however, as the condition is clearly severable from the other conditions imposed, as the Fourth Respondent submitted.

Condition 7

116 Condition 7 makes no specific reference to a compensatory habitat payment. It refers to “arrangements for the acquisition and embellishment of land containing [certain] habitat”. The reason set out for the condition is “to fund the development and implementation of measures …”.

117 I agree that condition 7 does not, on its face, require the payment of money for compensatory habitat as both the Fourth Respondent and the Applicant argued, albeit with different consequences on their respective cases.

118 However I do not consider that I can ultimately resolve this issue in favour of the Fourth Respondent as I do not know what “arrangement” will satisfy condition 7. The Fourth Respondent argued that the dedication of land with suitable habitat would be one example of such an arrangement which could satisfy condition 7. Equally, I am of the view that the wording of condition 7 is so broad that a compensatory habitat payment could also be an “arrangement” which would satisfy condition 7. Ultimately I consider the wording is so open ended that its meaning is difficult to divine.

119 In this context the decision-making process leading up to the decision may be material in construing the meaning of condition 7. The decision making process followed by the Fourth Respondent in relation to the issue of the concurrence granted by the Fourth Respondent to the Machro DA and the Eric Norman DAs can only be inferred from the documents tendered in Court from the NPWS files. The SIS proposes only one means of dealing with the loss of threatened species habitat which will result if the developments the subject of the Machro DA and the Eric Norman DAs are approved. This is the payment of money by the developers to the NPWS to enable the preservation of similar habitat elsewhere in the locality. It is this proposal which forms the main topic discussed in subsequent correspondence between the NPWS and the First and Second Respondents and which is discussed in the Concurrence Report. The relevant extracts of the Concurrence Report are set out above at par 84 to 86.

120 The letter sent by the Director General’s delegate to the Council informing them that concurrence has been granted, referred to at par 79 above, states that concurrence has been granted “for the reasons set out in Section 10 of the attached report and subject to the conditions outlined in Section 11 of the attached report.” The Concurrence Report attached to that letter states the concurrence was granted because:

Generally, the impacts of the proposals on the threatened species as considered in the SIS and additional information provided by the applicants will be ameliorated by the effective implementation of the measures outlined in the SIS and the conditions of concurrence detailed in section 11 of this report. …

121 A minute dated 24 September 2003 executed by, amongst others, the same NPWS officer who acted as the Director’s delegate in issuing the concurrence (Tab 29 of exhibit A), states that:

NPWS’s preferred substantive amelioratory measure would have been the retention of part of the site as a reserve. However this option was not practicable …

Consequently, the NPWS agreed to the applicants’ proposal to provide funds to NPWS to acquire, conserve and/or manage similar threatened species habitat. …

While this minute was prepared after the grant of concurrence on 1 September 2003 I consider that it is nonetheless material.

122 A letter dated 29 July 2003 from the developer’s consultant to the Director General’s delegate (Tab 25 of Exhibit A) is the only document to which I was referred which raises any alternative option to the a compensatory habitat payment. This letter seems to suggest that land suitable for a voluntary conservation agreement had been located and to offer this to the NPWS as an alterative to the compensatory habitat payment. No copy of any response by NPWS to this letter was tendered in evidence. The Concurrence Report dated September 2003 was prepared after this letter was received.

123 While the other matters relied on in argument by the Fourth Respondent to suggest that a compensatory habitat payment was not imposed, as set out at par 100, the clear inference which is able to be drawn from the documents tendered is that the only concrete proposal before the Fourth Respondent’s delegate at the time concurrence was granted was that a compensatory habitat payment would be made by the developers. What is unclear, based on the Concurrence Report and other documents tendered in evidence, is the size of the payment to be made by the First and Second Respondents as, at the time concurrence was granted, NPWS had not accepted the developers’ monetary offers. This material suggests that the compensatory habitat payment was a material matter in the mind of the Director General’s delegate at the time concurrence was granted.

124 The wording of condition 7 taken together with the decision making process which lead up to the issue of concurrence by the delegate of the Director General is unclear.

125 As I noted above, condition 7 does not appear, on its face, to impose any requirement on the First or Second Respondents to make such a payment but merely requires evidence that:

…the Applicant has entered into an arrangement with the Director-General of National Parks and Wildlife in respect of the acquisition or embellishment of land containing habitat similar to that within the subject site and/or providing known or potential habitat for threatened species known or likely to occur within the subject site, and/or the conservation and management of those threatened species known or likely to occur within the subject site

126 Arriving at a final conclusion on the legal arguments of the parties is therefore problematic. It is however clear that, whatever it means, condition 7 is not severable as it is integral to the conditions of concurrence and hence of the relevant development consent conditions.

127 I have found none of the parties’ arguments as to the construction of condition 7 completely persuasive. The Applicant’s primary arguments in reliance on the compensatory habitat payment, being arguments (i) and (ii) set out at par 89 above would appear to fail but nor can I accept the Fourth Respondent’s arguments as to the validity of condition 7.

128 That leaves the Applicant’s uncertainty argument ((iii) at par 89 above) although I note the Director General’s submission that uncertainty is not an independent head of legal error. Rather the Director General argued that where delegated legislation or an executive instrument is challenged on the ground that it is uncertain or otherwise ineffective, the task is to determine the true nature and extent of the power pursuant to which it is alleged the executive instrument has issued or the delegated legislation has been made. This was used as the basis of the Fourth Respondent’s submission, set out at par 109 above, that if the conditions are capable of being given effect to as within power they should be. The difficulty with that approach in this case is that it is not clear what condition 7 requires the First and Second Respondents to do at all. As neither of those Respondents raised any arguments about the lack of certainty in the conditions this was not an aspect of this issue raised before me. I am inclined to think the Applicant’s argument on this ground fails but nor do I consider that all material argument in relation to this issue of uncertainty was presented to the Court.

Does the Fourth Respondent have the Power to Impose A Condition Requiring the Payment of a Compensatory Habitat Payment on a Grant of Concurrence?

129 I have not yet dealt with the opposing arguments of the parties in relation to whether the Fourth Respondent has the power to impose a compensatory habitat payment as one view this issue does not arise if no compensatory habitat payment was imposed in condition 7. I am, in any event, unable to finally determine the issue on the basis of the arguments received.

130 The Respondents argued that the imposition of a condition requiring the payment of a compensatory habitat payment is within power because of the principles enunciated by Moffit P and Glass JA in Tandel at p 199 to p 206. The Court of Appeal in Tandel considered the power of a council to impose a condition, pursuant to cl 27 of the County of Cumberland Planning Scheme Ordinance, requiring the payment of money on a development consent granted pursuant to the now repealed Local Government Act 1919. Neither cl 27 of the County of Cumberland Planning Scheme Ordinance nor the Local Government Act 1919 contained any provision specifically granting a council the power to impose a consent condition requiring the payment of money, with cl 27 merely providing that the council “shall decide whether to give or withhold consent and in the former event what conditions, if any, shall be imposed.”

131 Glass JA, with whom Samuels JA agreed, quoted from Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 20 LGRA 208 at p 216 to the effect that the discretion to impose conditions was not unlimited but councils had power “to impose conditions which are reasonably capable of being regarded as related to the purpose for which the function of the authority is being exercised” at p 205 to 206.

132 Since Tandel was decided the EP&A Act has been enacted. Section 80A of the EP&A Act gives a consent authority a general power to impose conditions of consent while s 94 of the EP&A Act explicitly gives a consent authority the power to impose a condition of consent requiring the payment of money provided various requirements are met. Section 94(1) of the EP&A Act states:

Subject to subsection (2), if a consent authority is satisfied that a development, the subject of a development application or of an application for a complying development certificate, will or is likely to require the provision of or increase the demand for public amenities and public services within the area, the consent authority may grant consent to that application subject to a condition requiring:

(a) the dedication of land free of cost, or

(b) the payment of a monetary contribution,

or both.

133 In Fitch v Shoalhaven City Council (1989) 67 LGRA 165 at 170, Stein J held that s 94 provided the exclusive power for a council to impose a condition requiring the contribution of money as a condition of development consent. This approach was followed by the Court of Appeal in Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41. However, the concurrence condition imposed by virtue of s 79B(8) of the EP&A is arguably not imposed by the consent authority meaning the council pursuant to s 94(1) of the EP&A Act. Rather, it is being imposed by the Fourth Respondent as a concurring authority who is empowered by s 79B(8)(a) of the EP&A Act to “grant concurrence to the development, either unconditionally or subject to conditions” and, ultimately by the consent authority, who is required to by s 79B(9) of the EP&A Act to grant any consent “subject to any conditions of the concurrence.”

134 My preliminary view, however, is that in the absence of an express power in the NPW Act or the EP&A Act enabling the imposition of a requirement for the payment of money for compensatory habitat, such a requirement is beyond power. It is not immediately apparent that Tandel can be relied upon as the basis for the necessary power. This is a preliminary view, the matter requires greater analysis and argument and it is not necessary that I finally resolve this issue here.

Conclusion

135 Given my findings that both the Machro Consent and the Eric Norman Consents are, for different reasons, void it is appropriate that I make the declarations to this effect sought by the Applicant. I do not, however, propose to make any orders in relation to the concurrence granted by the Fourth Respondent’s delegate as, for the reasons set out above, I do not consider that I am in a position to finally determine the Applicant’s arguments in relation to this ground and given my earlier findings it is not necessary that I do so. Nor do I propose to make any orders restraining the First and Second Respondents from acting on the Machro Consent and the Eric Norman Consents. I have held that these consents are void. Section 76A(1) of the EP&A Act prohibits the First and Second Respondents from carrying out the development the subject of these consents.

136 The Court makes the following declarations:

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Citations

Friends of South West Rocks Inc v Machro Pty Limited [2004] NSWLEC 721

Most Recent Citation

Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94

Cases Citing This Decision

1

Commitment Pty Ltd v Georges River Council (No 2) [2022] NSWLEC 94

Cases Cited

10

Statutory Material Cited

9

Currey v Sutherland Shire Council [2003] NSWCA 300

Centro Properties Ltd v Hurstville City Council [2004] NSWLEC 401

NAAT v Minister for Immigration & Multicultural Affairs [2002] FCA 332

CITATION:	Friends of South West Rocks Inc v Machro Pty Limited and Ors [2004] NSWLEC 721
PARTIES:	APPLICANT: Friends of South West Rocks Inc FIRST RESPONDENT: Machro Pty Limited SECOND RESPONDENT: Eric Norman Developments Pty Limited THIRD RESPONDENT: Kempsey Shire Council FOURTH RESPONDENT: The Director-General of National Parks and Wildlife
FILE NUMBER(S):	41639 of 2003
CORAM:	Pain J
KEY ISSUES:	Development Consent :- Whether development application made if not accompanied by SIS - Whether separate development applications can be aggregated to determine whether state significant development under SEPP 71 or whether masterplan required under SEPP 71 - failure by consent authority to consider relevant matters - whether concurrence given by NPWS invalid as requires a payment in compensation for loss of threatened species habitat
LEGISLATION CITED:	Coastal Protection Act 1979 Environmental Planning and Assessment Act 1979, s 76A, s 78A, s 79B, s 79C, s 80A, s 94 Environmental Planning and Assessment Regulation 2000, cl 49, cl 50(1), cl 51 Interpretation Act 1987, s 11, s 32(2)(a) Kempsey Local Environmental Plan 1987 Land and Environment Court Act 1979, s 25B National Parks and Wildlife Act 1974, s 8(7) State Environmental Planning Policy 71 - Coastal Protection, cl 2, cl 7(b), cl 8, cl 10, cl 17, cl 18(1), cl 25, sch 2 Threatened Species Conservation Act 1995
CASES CITED:	Allen Commercial Constructions Pty Ltd v North Sydney Municipal Council (1970) 20 LGRA 208; Botany Bay City Council v Remath Investments No 6 Pty Ltd (2000) 50 NSWLR 312; Fairfield City Council v N & S Olivieri P/L [2003] NSWCA 41; Fitch v Shoalhaven City Council (1989) 67 LGRA 165; Meriton Apartments Pty Limited v Minister Urban Affairs and Planning (2000) 107 LGERA 363; Mison v Randwick Municipal Council (1991) 23 NSWLR 734; Parramatta v Hale (1982) 47 LGRA 319; Rockdale Municipal Council v Tandel Corporation Pty Limited (1975) 34 LGRA 196; Somerville v Dalby (1990) 69 LGRA 422; Starray Pty Limited v Sydney City Council [2001] NSWLEC 129; Waverley Council v C. M. Hairis Architects [2002] NSWLEC 180; Weal v Bathurst City Council (2000) 111 LGERA 181
DATES OF HEARING:	10/06/2004 11/06/2004 15/06/2004 25/10/2004
DATE OF JUDGMENT:	12/21/2004
LEGAL REPRESENTATIVES:	APPLICANT: Mr I. Hemmings instructed by the Environmental Defenders Office FIRST RESPONDENT: Mr C. E. Underwood instructed by Howard Sheridan Cooney Harvey SECOND RESPONDENT: Mr J. Maston with Mr M. Seymour instructed by Falvey Associates THIRD RESPONDENT: N/A FOURTH RESPONDENT: Ms J. Jagot with Mr D. M. Jay instructed by the Department of Environment and Conservation